March 12, 1997

 

FACTS:


An individual who works as a private security guard for a
shopping mall in Methuen ("City") would like to serve as an
intermittent or reserve police officer for the City. The City's
Chief of Police has nominated this individual for appointment as an
intermittent police officer by the Mayor.[1] Methuen, like many
municipalities in the Commonwealth, augments its regular police
force through the use of reserve and intermittent police officers.

Pursuant to G.L. c. 147, s. 11, a city may establish a reserve
police force. The mayor, chief of police or city marshal may
assign the members of the reserve police force to duty whenever,
and for such length of time, as they may deem necessary. G.L. c.
147, s. 13. When members of the reserve force are on duty, they
"shall have all the powers and duties of members of the regular
police force." Id.2[2]

Methuen also has a permanent intermittent police force, which
was established by special act. St. 1945, c. 201, s. 1.[3].
Intermittent police officers may be called to duty when the City or
the Chief of Police determines that their service is required. Id.
Any member of the intermittent police force called into service
also "shall have all of the powers, duties and rights" of a regular
police officer. Id.

Both reserve and intermittent officers must complete the same
course of study prior to exercising police powers. G.L. c. 41, s.
96B. A major difference between reserve and intermittent police in
Methuen is that an individual can be appointed an intermittent
police officer without having to complete a civil service
examination.[4] For purposes of our opinion, we shall refer to
both reserve and intermittent police officers as "Intermittent
Officers".[5]

According to the Chief of Police, Intermittent Officers are
most often called into service to perform municipal detail work[6]
on a part-time basis when regular police are not available. Detail
work is assigned only on a daily basis. Accordingly, an
Intermittent Officer is not assigned to a municipal detail for more
than one day at a time. The Chief of Police has informed us that,
contrary to the requirement for full-time regular police officers,
the Police Department does not consider Intermittent Officers to be
"on duty" at all times nor does it authorize or require them to
take reasonable action to preserve the peace or protect life and
property when they are not on duty.[7]

As the Chief of Police has explained, Intermittent Officers
need other employment because of the part-time nature of their
police work for the City. He further noted that most of those who
wish to become full-time regular police begin their careers by
becoming Intermittent Officers. The Department believes that
private security guard work, for example, provides background that
benefits future police work.


QUESTION:


Does G.L. c. 268A, s. 23(b)(1) prohibit a part-time
Intermittent Officer from also working privately as a security
guard within Methuen?


ANSWER:


Section 23(b)(1) of G.L. c. 268A will not prohibit a part-time
Intermittent Officer from working privately as a security guard
within the City, as long as he or she does so when not on active
police duty. An Intermittent Officer's private work will, however,
be subject to the restrictions of s. 17, 19 and 23 of the conflict
of interest law noted below.


DISCUSSION:


Intermittent Officers are "municipal employees"[8] for
purposes of the conflict of interest law. As such, they are
subject to s. 23(b)(1), which prohibits a municipal employee from
accepting "other employment involving compensation of substantial
value,[9] the responsibilities of which are inherently incompatible
with the responsibilities of his public office."

Page 669

Section 23(b)1)

In EC-COI-94-8, we concluded that s. 23(b)(1) prohibited the
Town ("Town") of Falmouth's full-time regular police officers from
providing private security services in the Town, but outside of the
Town's established detail system, because the Falmouth Police
Department Manual required police to be "on duty" at all times, not
only during their regular duty shifts. In Falmouth, regular police
officers are required to take reasonable police action when
necessary, even during their off-duty hours. Therefore, an officer
performing private security services in Town "would be forced to
choose between his public position obligations and the wishes of
his private employer," thus creating the inherent incompatibility
s. 23(b)(1) prohibits. We found that in such circumstances, the
police officer's private employment as a security guard violates s.
23(b)(1). See also EC-COI-94-3 (employment as home inspector
potentially inconsistent with statutory obligations as building
inspector); 91-14 (current member of the General Court may not
conduct seminars regarding obtaining advantages before or otherwise
lobbying the Legislature).

By contrast, Intermittent Officers in Methuen are not "on
duty" at all times. When not on active duty, they have neither the
authority nor the obligation to act as police officers. Therefore,
the quandary we described in EC-COI-94-8 would not arise for an
Intermittent Officer in Methuen not on active duty because he or
she would not be forced to choose between his or her public
obligations and his or her duties as a private security guard at a
facility located in the City. Thus, we conclude that s. 23(b)(1)
does not preclude a part-time Intermittent Officer in Methuen from
also working as a private security guard in the City when off
duty.[10] Nonetheless, a Intermittent Officer must be aware that
other sections of the conflict law, which we note briefly below,
will restrict his or her private activities.[11]


Other Sections of G.L. c. 268A


In particular, s. 17(a) and (c) prohibit a municipal employee,
such as an Intermittent Officer, from directly or indirectly
receiving compensation[12] from, or acting as agent[13] for, anyone
other than the City, in connection with or relation to a particular
matter[14] in which the City is a party or has a direct and
substantial interest.

For example, s. 17 generally would prohibit an Intermittent
Officer working as a private security guard at a shopping mall from
being privately compensated or acting as his private employer's
agent in connection with a criminal incident that occurred at the
mall and to which the City's police responded. See e.g., EC-COI-
89-30
(a Police Chief, who did not have twenty-four hour per day
official duties and responsibilities, could not undertake or be
paid privately to oversee an internal investigation of a crime at
his private employer's facility which inevitably would involve his
police department). An Intermittent Officer could not later submit
claims or reports or give interviews on behalf of the shopping mall
in connection with a Police Department's subsequent investigation
leading to an arrest or charge.[15] See also EC-COI-88-7 and EC-
COI-93-5.
If the Intermittent Officer cannot practically arrange
his or her private work to accommodate these restrictions, the
Officer would have to discontinue such work in order to serve as an
Intermittent Officer.[16]

Additionally, s. 19 would prohibit an Intermittent Officer
from participating as such in particular matters in which his
private employer had a reasonably foreseeable financial interest.
See e.g., EC-COI-93-20. For example, he could not participate as
an Officer in a claim, charge or arrest that could affect his
private employer's financial interests, such as a charge that could
impose a monetary penalty. If circumstances arise in which he
would like to participate, he must obtain the following exemption
in advance of his participation.

Under s. 19(b)(1), he must advise his appointing authority in
writing about the nature and circumstances of the particular matter
and make full disclosure of the financial interest. He must then
receive a written determination made by his appointing authority
that the financial interest is not so substantial as to be deemed
likely to affect the integrity of his services to the City.

We also note that, under s. 23(b)(2), an Intermittent Officer
may not use his official position to secure for himself or others
unwarranted privileges or exemptions of substantial value that are
not properly available to similarly-situated individuals. EC-COI-
93-17; 92-38
. For example, he could not use his position as an
Intermittent Officer to elicit favorable treatment from the Police
Department on behalf of the shopping mall. See also EC-COI-92-7
(discusses restrictions over a public employee's business
relationship with persons or entities within his regulatory
jurisdiction).

Under s. 23(b)(3), an Intermittent Officer may not engage in
any conduct that gives a reasonable basis for the impression that
any person or entity can improperly influence or unduly enjoy his
favor in the performance of his duties, or that he is likely to act
or fail to act as a result of kinship, rank, or position of any
person. To

Page 670

dispel such an impression, the Officer must make a
written disclosure of all the facts and circumstances to his
appointing authority in advance of participating in the matter.
EC-COI-91-3; 89-19; Commission Fact Sheet, Avoiding "Appearances"
of Conflicts of Interests, Standards of Conduct (Section 23).
For
example, if an Intermittent Officer had once worked for a private
company and the Chief of Police assigned him to work on a matter
involving that company, it might be reasonable to conclude that the
Officer could be biased in his official work relating to that
former employer. In such circumstances, s. 23(b)(3) would require
him to file a written disclosure with his appointing authority
about his private relationship with that employer.

Finally, s. 23(c) will prohibit an Intermittent Officer from
engaging in any business or professional activity that will require
him to disclose confidential information which he has gained by
reason of his official position or authority and from improperly
disclosing material or data which is exempt from the definition of
a public record, G.L. c. 4, s. 7. See e.g. EC-COI-91-1.


---------------

*Pursuant to G.L. c. 268B, s. 3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

[1] This request for advice under G. L. c. 268A comes from the
Chief of Police on behalf of the individual.

[2] In municipalities, such as Methuen, that have accepted
civil service law, an individual must complete a civil service
examination, among other requirements, prior to being eligible for
appointment as a reserve police officer. G.L. c. 31, s. 59. See
also G.L. c. 31, s. 58, 61A.

[3] According to the Chief of Police, the special act was
intended to address the shortage of police personnel in the City
caused by World War II.

[4] Although reserve police officers and permanent
intermittent police officers may have once had a different status
for purposes of civil service law, see Op. Att'y. Gen., Pub. Doc.
No. 12
at 90, (June 24, 1941), G. L. c. 31, s. 60, inserted by St.
1978, c. 393, s. 11, appears to treat them the same for purposes of
appointment to the regular police force. See also G. L. c. 31, s.
34; c. 32,
s. 4(2)(b); c. 32, s. 85H; c. 41, s. 96B (other examples
that treat reserve and intermittent police the same) and Costa v.
Board of Selectmen of Billerica
, 377 Mass. 853, 854 (1979)
(permanent intermittent police officers are "officers with tenured
status but working only on such days as they might be called.").
Nothing in our opinion, however, turns on what differences, if any,
may exist between the two types of police officers for purposes of
civil service laws.

[5] The total number of Intermittent Officers in Methuen
varies from time to time because of promotion to regular, full-time
status or simple attrition. Additionally, there are normal delays
in filling the Intermittent Officer ranks. For example, the Chief
of Police has noted that when Intermittent Officers are promoted to
the full-time police force, their replacements, in the case of
reserve officers, must come from the civil service list. The Chief
also has noted that individuals he selects as potential
intermittent police officers must be approved by the Mayor. The
City is authorized to have up to seventeen reserve police officers,
G. L. c. 147, s. 12, and up to twelve intermittent police officers.
St. 1945, c. 201, s. 1.

[6] See Commission Advisory No. 10, Chiefs of Police Doing
Privately Paid Details
(describes municipal detail work which
includes, among other things, traffic control at construction
sites, crowd control and security work).

[7] Based upon the language in both G. L. c. 147, s. 13 that
gives reserve and intermittent officers police powers "when on
duty," and St. 1945, c, 201, s. 1, which gives intermittent
officers police powers when "called into service," the City's
attorney is of the opinion that Intermittent Officers possess
police authority only upon assignment to active duty. Therefore,
the Police Department has had a policy that Intermittent Officers
may not exercise police powers when not on duty. By contrast, the
Chief has noted that Departmental policy requires regular full-time
police to be "on duty" at all times to preserve the public peace
and protect life and property.

[8] "Municipal employee," a person performing services for or
holding an office, position, employment or membership in a
municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation,
on a full, regular, part-time, intermittent, or consultant basis,
. . . G.L. c. 268A, s. 1(g).

[9] Anything valued at $50 or more is "of substantial value".
EC-COI-93-14.

[10] We would, however, reach the same conclusion as we did in
EC-COI-94-8 if the Department established a policy, consistent with
G. L. c. 147, s. 13 and St. 1945, c. 201, s. 1, that required
Intermittent Officers to exercise police responsibilities when not
on active duty, i.e., making them "on duty" at all times.
Similarly, s. 23(b)(1) would prohibit an Intermittent Officer
called to full-time active duty, for example, to fill in for a
regular police officer on leave, from continuing to be employed as
a private security guard in the City during such duty, if such an
Officer were required to be on duty at all times.

[11] Based upon the limited facts presented to us, our advice
about these other sections of c. 268A must necessarily be general
in nature.

[12] "Compensation," any money, thing of value or economic
benefit conferred on or received by any person in return for
service rendered or to be rendered by himself or another. G.L. c.
268A, s. 1(a).

[13] We have concluded that "the distinguishing factor of
acting as agent within the meaning of the conflict law is `acting
on behalf of' some person or entity, a factor present is acting as
spokesperson, negotiating, signing documents and submitting
applications." In re Sullivan, 1987 SEC 312, 314-315; See also, In
re Reynolds,
1989 SEC 423, 427; Commonwealth v. Newman, 32
Mass. App. Ct. 148, 150 (1992).
 

Page 671


[14] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s. 1(k).

[15] We recognize, however, that as a practical matter, if the
Intermittent Officer were working his private security shift when
a criminal incident occurred at the mall, he should be allowed to
answer the police's questions at the scene (as would any
witness), without being required to forfeit his private pay for the
remainder of his shift. Once such preliminary questioning had
concluded, however, s. 17 would not allow him to continue to work
with the police on behalf of the mall or be paid by his private
employer in connection with an ongoing police investigation.
He may, however, give "testimony under oath or [make] statements
required to be made under penalty for perjury or contempt" in connection
with the incident. G. L. c. 268A, s. 17.

[16] Alternatively, if Intermittent Officers were classified
as special municipal employees, G. L. c. 268A, s. 1(n), s. 17
could, in certain circumstances, impose fewer restrictions on their
private activities. A special municipal employee is subject to s.
17(a) and (c) "only in relation to a particular matter (a) in which
he has at any time participated as a municipal employee, or (b)
which is or within one year has been the subject of his official
responsibility, or (c) which is pending in the municipal agency in
which he is serving. Clause (c) of the preceding sentence shall
not apply in the case of a special municipal employee who serves no
more than sixty days during any period of three hundred and sixty-
five consecutive days." See e.g., EC-COI-91-5 and 85-49 (cases
discuss calculation of the 60 day period).

For example, it would be likely that an Intermittent Officer who
performed municipal detail work would neither have participated in
nor had official responsibility over a police investigation of a
crime involving his private employer, the shopping mall.
Therefore, in such circumstances, if an Intermittent Officer were
classified as a special municipal employee, s. 17(a) and (c) would
not restrict him in his actions on behalf of the shopping mall in
connection with a criminal incident as long as he did not serve as
an Intermittent Officer more than sixty days during any three
hundred and sixty-five day period.
 

Page 672

End of Decision